Sotomayor vs. the court

CHICAGO TRIBUNE

The U.S. Supreme Court decision Monday on a lawsuit by lead plaintiff Frank Ricci and other white firefighters in New Haven, Conn., was a significant event as a matter of jurisprudence. But the legal import of the ruling has taken a back seat to commentary on what it reveals about Sonia Sotomayor, President Barack Obama's nominee to fill the seat being vacated by David Souter.

The case arose after New Haven gave a promotion exam on which white firefighters did much better than blacks or Hispanics, with no African-Americans qualifying for immediate promotion. The city, fearing a lawsuit by minority applicants, decided to throw out the results and promote no one. So it got sued by whites (and one Hispanic) who said they were being victimized because of their race.

A federal district court ruled against them. Then a three-judge panel of the 2nd U.S. Circuit Court of Appeals, including Sotomayor, upheld that decision. But now the Supreme Court says the city violated federal civil rights law. And her critics make much of the fact that in the end, a majority of the nine justices disagreed with her.

What does all this tell us about Sotomayor the judge? Not a lot. It's true that the court reversed her decision. But that was not hers alone. A majority of judges on the appeals court voted to reaffirm the judgment. Monday, four justices also rejected the claims of the white firefighters. So if she was wrong, she was in good company.

Also notable is that in reaching its verdict, the Supreme Court more or less admitted that its past decisions left some uncertainty on discrimination cases involving "disparate impact" -- where policies that look neutral end up working to the disadvantage of one racial group or another. So it fashioned a new rule. While employers may go to great lengths to design a process to prevent any disparate impact, wrote Justice Anthony Kennedy, "once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee's legitimate expectation not to be judged on the basis of race."

That is a sensible approach, and it may seem like an obvious one. But it was not a course the court had spelled out before. Sotomayor and her 2nd Circuit colleagues were therefore obliged to follow the law as it existed then. As Kennedy acknowledged, this is one of those "cases in which statutes and principles point in different directions," compelling the Supreme Court to give clear guidance.

Sotomayor may be criticized for not reaching the same decision as the justices did. But had she done that, she might have been faulted for going beyond the court's previous decisions. Maybe she let her sympathies for minority firefighters cloud her thinking. Or maybe she was acting with a measure of judicial restraint.

One valid criticism is that she and her colleagues upheld the district court ruling without producing a detailed written opinion to explain their reasons. That failure is hard to square with the complex, weighty issues at stake -- which deserved the best analysis the appeals court could provide.

Why did Sotomayor reach the conclusion she did, and why didn't she bother to lay out her reasoning? Those are good questions, which she will surely get a chance to answer.